As an alternative to the defense that the government has failed to prove the defendant guilty beyond a reasonable doubt, the defendant may allege that he was entrapped. An entrapment defense admits that the offense took place, but alleges that the defendant would not have committed the offense but for the influence of law enforcement. This defense should be considered carefully in cases involving undercover agents and sting operations, which involve law enforcement officers posing as regular people while the defendant engages in some activity to be prosecuted later.
Investigations conducted by the Bureau of Alcohol, Tobacco and Firearms, Federal Bureau of Investigation, and Drug Enforcement Administration, will frequently involve some sort of deceptive arrangement. At times, federal investigators will conduct the investigation with the assistance of police officers from that city or deputies of the county sheriff.
All of these investigators are trained in techniques to get someone to participate in a scheme with a criminal purpose. While their participation may seem voluntary, federal courts recognize that the decision to participate may not be, legally voluntary.
The courts have said, “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” See Jacobson v. US, 503 U.S. 540, 548 (1992).
The elements of an entrapment defense are the following:
- Inducement to commit a crime.
- Absence of a predisposition to commit a crime.
See Mathews v. US, 485 U.S. 58, 63 (1988). Entrapment is not codified in any statute in the United States Code (USC). Rather, it is a common law defense that the courts have recognized as necessary for due process.
The defendant must prove both elements in trial. Entrapment is not a defense that the defendant can raise prior to trial, such as a motion to dismiss.
Generally, the defendant can prove these elements by cross-examination of the government’s witnesses and then, when the United States has rested, present some evidence of his own during the defendant’s case. It may be possible to prove the entrapment defense entirely during the prosecution’s case, but that would be risky, because the jury would never hear from the defendant.
Inducement to commit a crime is the critical issue. Solicitation to commit a crime is not inducement. While there is no definition of inducement, the courts have said it is more than asking someone to commit a crime.
Inducement is at least persuasion or mild coercion. See US v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985). It may also be based on pleas of need, sympathy or friendship. See id.
The fact that federal investigators engaged in deception, lies, subterfuge, or misrepresentation, does not, by itself, establish inducement.
Whether the defendant was induced is a question for the jury to decide.
The defendant must also demonstrate that he was not predisposed to commit the crime. He must prove a lack of predisposition. Predisposition is not the same issue as intent. If the defendant is arguing that he did not intend to commit the crime, then this is not an entrapment defense. Entrapment says the defendant intended to do it, but did so because of the influence of government agents.
Generally, a lack of predisposition suggests the defendant was law-abiding but under the circumstances, had no choice but to commit the crime.
The vagueness of entrapment allows the defense to make a variety of arguments to the jury. The issue is what will the jury will believe.
The opinion of the author is that jurors are very sensitive to the appearance of fairness. If they see the defendant as outnumbered and outmatched by federal investigators and prosecutors, they may feel sympathy for him and believe an entrapment defense. Jurors may disapprove of deception and lies by federal investigators.
In any case, the defense should concentrate on presentation. Present the defendant as a person and attempt to get the jury to acknowledge human nature means people make mistakes, and while the crime was no ordinary mistake, the deceptive influence of the federal government was the difference. That is why the defendant committed the crime.
If the facts of the case involve an undercover drug transaction, purchase of firearms, sting operation, or the involvement of an agent posing as a regular person in some type of setup, entrapment should be contemplated.